Holley v. Wilkinson , 31 Ala. 196 ( 1857 )

BIOE, O. J.

— The positive denials of an answer responsive to tbe bill, and which meet the real object and effect of its charges, are not outweighed or disproved by the mere admissions of the respondent, contained in his answer to a garnishment, sued out against him at law by a person different from the complainant, unless the complainant waives the answer being made under oath, as he is allowed to do by section 2877 of the Code. — Love v. Braxton, 5 Call’s Rep. 537; Hope v. Evans, 1 Smedes & Marsh. Ch. Rep. 195; Petty v. Taylor, 5 Dana, 598; Smith v. Rogers, 1 Stew. & Por. 317; Br. B’k at Decatur v. Marshall, 4 Ala. R. 60.

The answer to the garnishment at law, when offered in evidence in the suit in chancery, is regarded as a declaration or admission of the party making it; and when, as in this case, it is not corroborated by any other evidence, it will not overcome the positive denials of the answer to the bill. Prom these premises the conclusion is, that the decree was unauthorized by the proof, and must, therefore, be reversed. But, as the circumstances appearing in the record render it probable that the complainant has a just right, of which the chancellor would not have deprived him, by an absolute dismissal of his bill, if he had taken the same view of the evidence which we have taken, we shall not deprive the complainant of the opportunity to assert whatever right he may have in another suit, but shall dismiss his bill without prejudice to his right to file another bill asserting his right to relief. — Wilkins v. Wilkins, 4 Porter, 245; Singleton v. Gayle, ib. 270.

The decree of the chancellor is reversed, and a decree must be here rendered, dismissing the bill without prejudice, as herein above stated; and adjudging the costs of this court, and of the court below, against the complainant.